Louis Warren (a pseudonym)[1] v The Queen
[2017] VSCA 35
•3 March 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0071
| LOUIS WARREN (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | WEINBERG, WHELAN and FERGUSON JJA |
| WHERE HELD: | MORWELL |
| DATE OF HEARING: | 20 February 2017 |
| DATE OF JUDGMENT: | 3 March 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 35 |
| JUDGMENT APPEALED FROM: | DPP v Warren (a pseudonym) (Unreported, County Court of Victoria, Judge Cannon, 27 August 2015 (Conviction)) |
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CRIMINAL LAW – Conviction – Applicant convicted of five charges of indecent assault and three charges of incest – Complainant was applicant’s step-daughter – Verdicts said to be unreasonable and/or not supported by the evidence – Verdicts of guilty on two indecent assault charges said to be inconsistent with verdict of not guilty on rape charge – Verdict said to be unsafe by reason of forensic disadvantage suffered by applicant – Whether trial judge erred in failing to include all necessary matters in forensic disadvantage direction – Open to jury to accept complainant’s evidence as credible – Plausible explanation for acquittal on rape charge – Trial judge’s forensic disadvantage direction adequate – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C F Thomson | Slades & Parsons Solicitors |
| For the Crown | Mr B Kissane QC with Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
WHELAN JA
FERGUSON JA:
The applicant stood trial in the County Court at Melbourne, charged with various sexual offences against his step-daughter, ‘NP’. On 27 August 2015, he was convicted of five charges of indecent assault (charges 1, 2, 4, 5 and 6), and three charges of incest (charges 7, 8 and 9). These offences were said to have been committed between 1 April 1988 and 14 March 1990. NP was, at the relevant time, aged between nine and 11. The applicant was acquitted on charge 3, which was a charge of rape.
Proposed grounds of appeal
In the present matter, the applicant seeks leave to appeal against conviction upon the following grounds:
1.The verdicts are unreasonable and cannot be supported having regard to the evidence.
2.The not guilty verdict on Charge 3 of rape was inconsistent with the other guilty verdicts as the prosecution case depended on the credibility of the applicant.
3.The significant forensic disadvantage suffered by the applicant led to a substantial miscarriage of justice.
Circumstances surrounding the commission of the offences
In setting out the circumstances surrounding the commission of the offences, it will be convenient to summarise, in part, various passages from the Registrar’s Neutral Summary.
NP’s evidence
NP gave evidence that she was the second oldest of eight children, and the applicant’s stepdaughter. The applicant and NP’s mother (‘KP’) married in April 1988, when NP was aged about nine. The family lived in Broadmeadows.
NP said that the applicant first engaged in sexual contact with her when she was aged between eight and nine. On that occasion, at about lunchtime on a weekend, he grabbed her by the arm and dragged her into his bedroom. He undressed her and began playing with her vagina. At that stage he inserted his fingers into her vagina (indecent assault — charge 1).
According to NP, the applicant then licked her vagina and penetrated it with his tongue, all the while playing with his penis (indecent assault — charge 2). NP was asked whether, during this incident, she had felt or seen the applicant’s penis. She replied that she had felt his penis rubbing back and forth on her inner thigh. She then said ‘And then from then, he actually inserted his penis into my vagina.’
NP said that this act of penile intercourse (which formed the basis of charge 3 — rape) had lasted for about ten minutes. She could not remember whether the applicant had ejaculated. When asked whether he used a condom she said ‘he never wore a condom’. She said that when he had completed sexual intercourse he told her to put her clothes on and not mention what had happened to anyone.
Shortly afterwards, NP was asked whether anything like this had occurred again at the Broadmeadows house. She replied ‘he done it twice that I know of.’ Subsequently she said that ‘he did it twice from memory’, and explained that the applicant had done ‘the same thing, virtually exactly the same’, meaning fondling her vagina and having engaged in penile intercourse. That ‘same thing’ was said to have occurred about a week after the initial series of offences. The second series of offences that NP described were not the subject of charges on this indictment.
Charge 4, indecent assault, was said to have arisen out of an incident which occurred at a later point, at night, when the applicant collected KP from her job as a shift worker at a service station. According to NP, they drove to her mother’s workplace in the applicant’s Bedford panel van, but arrived early. The applicant parked just out of range of the security cameras that had been installed. He climbed into the back of the van with her and took down her pants. He then fondled her vagina, and licked it. She said that this incident took place just as she was starting puberty.
Subsequently, NP and her mother moved to Wangaratta. The applicant came up to join them, but he stayed at a caravan park. NP recalled that the caravan that the applicant was occupying had a set of bunks on the left hand side, as well as a kitchen and dining table in the centre and a double bed at the other end.
According to NP, there was a subsequent occasion when the applicant sexually molested her. It took place when she was aged about 11. At the applicant’s invitation she visited him at his caravan. They had tea, and she then said that she wanted to go home. He told her that it was late, and he did not want to drive at night. The caravan park was some ten to 15 minutes’ drive from the house where she and her mother were then living.
In the end, NP had to stay the night. She said that the applicant arranged for her to sleep on the double bed, and said that he would sleep on the kitchen chairs. She was wearing a nightie and knickers at the time, having brought the nightie with her at her mother’s suggestion, she said ‘just in case’.
At about 11:00 pm, the applicant came up to the bed, pulled the blanket back, lifted up her nightie and pulled her knickers down. He then played with her vagina (charge 5 — indecent assault), licked it (charge 6 — indecent assault) and proceeded to engage in penile intercourse (charge 7 — incest). NP’s evidence was that the applicant said nothing to her during that incident. She said that she pretended to be asleep. The act of intercourse lasted about five minutes. She did not know whether the applicant had ejaculated. She said that he did not use a condom.
According to NP, the applicant repeated these actions about half an hour later. This included sexual intercourse (charge 8 — incest). He did the same thing a third time, once again about half an hour after that (charge 9 — incest). NP claimed that she had pretended to be asleep throughout all three incidents.
Subsequently, NP told her mother what had taken place at the caravan. She did not mention the earlier assaults at Broadmeadows. Nor did she mention what the applicant had done to her in the Bedford van.
Eventually, in March 1990, after NP and her mother had moved to Wodonga, NP made a formal complaint regarding the applicant’s conduct to police. That complaint was confined to the caravan incidents.
KP’s evidence
KP’s evidence was that she and the applicant met in 1986. They were married two years later. Shortly after, they moved to the Broadmeadows address, where they lived for about two years. KP mainly worked night shift.
In early 1990, KP and her children moved to Wangaratta. They lived there for about three months. At that time the applicant was living separately at the caravan park, which was located between Wangaratta and Wodonga.
Thereafter, KP and the children moved from Wangaratta to Wodonga. The children continued to have regular contact with the applicant who, at that stage, was still living at the caravan park.
KP recalled an occasion, while she was living in Wangaratta, when she went to collect NP, who had stayed overnight with the applicant at his caravan. She said that NP appeared very quiet. She added that this was totally different from her usual ‘bubbly’ demeanour.
Some time after KP had moved to Wodonga, she had a conversation with her daughter, during which she was told that the applicant had put his penis into NP’s mouth. With the assistance of a neighbour, the authorities in Wodonga were contacted. Both KP and NP attended the local police station and made a formal complaint. KP said that, after what NP had told her, she and the applicant no longer maintained ‘a husband and wife relationship’. Nonetheless, they continued to live under the same roof in Wodonga. In either late 1994 or early 1995 the marriage ended in divorce.
Informant’s evidence
Detective Senior Constable Simon Fisher, the informant in relation to the matters before this Court, gave evidence that NP had made a statement to police on 15 March 1990. However, that statement, together with an accompanying medical report, could no longer be traced, although there was a record of these documents having been provided to police at the relevant time.
Two of the police officers involved with the investigation in 1990 were no longer with the police force. One police officer, who was contacted about his involvement at the time, had no recollection of the matter at all. It seemed from all the material that the applicant had not been formally interviewed in 1990, and certainly no charges had been laid against him.
Applicant’s evidence
The applicant said that, while he and KP were living in Broadmeadows, NP had never been left on her own with him. He denied having ever molested her, whether in Broadmeadows or elsewhere. He said that KP always drove her own car to work, and maintained that he had never driven to the service station to collect her.
The applicant went on to say that, after KP and the children moved to Wangaratta, they visited him regularly at the caravan park. Later, when they moved to Wodonga, KP would try to come down to see him in Wangaratta every second weekend.
The applicant said that he recalled NP having stayed over at the caravan one night. He said that she had slept on the bottom single bunk bed, while he slept on the double bed. He denied any sexual impropriety. He said that KP came to collect NP the following day, shortly after lunch. It was after that that the police had approached him and asked him some questions regarding NP’s allegations.
The applicant’s recollection was that the police had suggested to him that NP had claimed that, while in the caravan, he had touched her inappropriately on the breast and thigh. He said that it had not been suggested to him that NP had made any more serious allegations than those.
The applicant said that his mother, ‘AW’, had learned about NP’s allegations from KP. She had asked him about them. He said that he could not remember precisely what he told her, but his best recollection was that he said that KP had explained to him that there had been a misunderstanding. He left it at that.
AW’s evidence
AW gave evidence that she first learned of NP’s allegations in 1990, while she was living in Townsville. The applicant had phoned her to say that his stepdaughter had accused him of interfering with her. AW subsequently visited the family in Wodonga. She said that she had taken the children for a walk at a nearby park, and that she had been alone with NP at one stage. She asked her directly if the applicant had touched her. NP had replied ‘No’, and added ‘mum made me say that’. She said that she was aware that the police had become involved, but added that she had never spoken to KP, or to the police, about what NP had told her.
Proposed grounds one and two
As the case was presented, there was a degree of overlap between grounds one and two. Both these grounds raise the fundamental question whether these convictions, or some of them, should be permitted to stand.
Ground one contends that the convictions should all be set aside because they are unsafe or unsatisfactory. Ground two contends that the acquittal on the charge of rape (charge 3) cannot sensibly be reconciled with the convictions on charges 1 and 2 and, in addition, with the convictions on the remaining charges.
The principles that govern whether a conviction is unsafe or unsatisfactory are, by now, well established. The starting point must be the decision of the High Court in M v The Queen.[2]
[2](1994) 181 CLR 487.
In their joint judgment Mason CJ, Deane, Dawson and Toohey JJ observed:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[3]
[3]Ibid 493 (citations omitted).
Their Honours added:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[4]
[4]Ibid 494 (citations omitted).
These principles have been applied on numerous occasions since they were first enunciated.
In Libke v The Queen,[5] Hayne J (with whom Gleeson CJ and Heydon J agreed) expanded somewhat upon the test laid down in M v The Queen. His Honour said that the question for an appellate court when considering whether a conviction should be set aside as unsafe or unsatisfactory was:
… whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.[6]
[5](2007) 230 CLR 559.
[6]Ibid 596–7 [113] (emphasis in original) (citations omitted).
Both M v The Queen and Libke v The Queen were applied by the High Court in SKA v The Queen.[7]
[7](2011) 243 CLR 400.
More recently in R v Baden-Clay,[8] the High Court stated:
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’[9]
[8](2016) 334 ALR 234.
[9]Ibid 246 [65]–[66] (citations omitted).
In Klamo v The Queen,[10] Maxwell P summarised the principles governing appellate review on the ground that the convictions were said to be unsafe or unsatisfactory. His Honour said:
[10](2008) 18 VR 644.
The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3.In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged – as distinct from entitled – the jury to come to a different conclusion.[11]
[11]Ibid 653–4 [38] (citations omitted).
It can be seen, therefore, that the ground in question requires this Court to engage in a careful consideration of the evidence led at trial, and to form its own view as to whether it was properly open to the jury to bring in the verdicts that it did.
The applicant’s contentions re ground one– unsafe or unsatisfactory
In his written case, the applicant submitted that the convictions were unreasonable and could not be supported having regard to the evidence for the following reasons:
· NP’s evidence was entirely unsupported by medical or forensic evidence. Moreover, as regards the Broadmeadows and Bedford van allegations, there was no recent complaint.
· There must have been a reason why police did not formally interview, or charge, the applicant after NP had complained about the caravan offences in 1990. However, the record was silent regarding that matter.
· There must have been a number of other children present in the house at Broadmeadows when those offences were said to have been committed.
· According to the applicant, the Bedford van, which was said to have been the vehicle in which the conduct giving rise to charge 4 had taken place, had been involved in an accident and was off the road for the entire time during which the family lived in Broadmeadows. KP denied that suggestion when it was put to her. She said the van was only off the road, at most, for two weeks. The problem was that the jury asked a question, during the course of their deliberations, as to whether they could convict the applicant of charge 4, if they found that a different vehicle, and not the Bedford van, had been involved. This indicated that the jury may well have accepted the applicant’s evidence that the Bedford van was off the road at all material times.
· It defied credulity that NP would have stayed overnight with the applicant in his caravan after she had repeatedly been assaulted by him both in the Broadmeadows house and in the Bedford van.
· It further defied credulity that NP could have pretended to be asleep throughout three separate acts of penile intercourse in the one night, in the caravan. It also defied credulity that the applicant could, physically, have engaged in three such separate acts of penile intercourse within the space of one hour.
· AW’s evidence that NP had told her that KP had ‘made me do it’ (ie make a false allegation to police) was itself credible, and should, on its own, have caused the jury to have a reasonable doubt about NP’s credibility.
· It further defied credulity that the applicant would be permitted to resume living with KP and her children in Wodonga if KP truly believed that he had assaulted NP in the caravan.
· It was not credible that, years after the alleged offending, NP, as a young adult, would choose to stay overnight with the applicant if he had previously raped and otherwise molested her. Nor was it credible that she would have asked him to help her pay her bills.
The Crown’s contentions re ground one– unsafe or unsatisfactory
The Crown submitted that, although there may have been some weaknesses in NP’s account, it had been open to the jury to accept her as a generally truthful and reliable witness. Certainly, it could not be said that the jury ‘must’ have had a reasonable doubt about the applicant’s guilt.
More specifically, the Crown submitted that it was by no means uncommon, in cases involving sexual offending against children, for convictions to be sustained even where there was no supporting evidence, still less corroboration, of the complainant’s account.
The Crown submitted that the question as to why the police had not charged the applicant after NP had complained in 1990 about the caravan incidents need not be answered. To do so would involve nothing more than idle speculation, and would, in any event, be irrelevant.
With regard to KP, the Crown noted that her evidence was that she could remember at least one occasion when the applicant had been home alone at the Broadmeadows house with NP. KP had added that there could have been other such occasions.
With regard to various other points made in the applicant’s written case, the Crown submitted that it was important to remember that this trial was conducted under the provisions of the Jury Directions Act 2015. Accordingly, Pt 5 Div 2 of that Act governed directions on delay in making a complaint, and also on matters of credibility.
Section 52(4) of the Jury Directions Act provides that in giving a direction in relation to delay on the part of a complainant in making a complaint in relation to sexual offending:
…the trial judge must inform the jury that experience shows that—
(a)people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence; and
(b) some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint; and
(c)delay in making a complaint in respect of a sexual offence is a common occurrence.
The Crown submitted that the directions given to the jury regarding matters of this kind were unimpeachable and, moreover, had not been the subject of any exception.
The Crown next submitted that the jury question concerning the Bedford van, and whether it was still possible to convict the applicant of the indecent assault charge in relation to NP’s description of what occurred within that van, did not cast any doubt upon the safety of the verdict.
With regard to what were said to be unusual or improbable aspects of NP’s behaviour at various times, the Crown argued that it had to be borne in mind that at the time the offending took place she had only been 10 or 11 years old.
As for the submission that NP’s account of the applicant having had penile intercourse with her three times in the space of about an hour was incredible, the Crown simply took issue with that contention.
The Crown next submitted that whatever weight was to be accorded to the evidence given by AW regarding her conversation with NP was quintessentially a matter for the jury. Plainly, the jury had the opportunity to see and hear AW first-hand, and to assess the credibility of her evidence accordingly. It was submitted that this Court, working solely from transcript, should not second-guess the jury in such circumstances.
Finally, the Crown submitted that there was nothing at all unusual about a child victim of sexual offending having continued to have contact with the offender thereafter, particularly given the family setting. Likewise, there was nothing remarkable about the fact that, years later, NP had borrowed money from the applicant.
All in all, when the evidence was considered as a whole, there was nothing to suggest that this jury were bound to acquit.
Analysis of ground one – unsafe or unsatisfactory
NP was, of course, cross-examined at considerable length. We have studied her evidence closely, both in-chief and under cross-examination. A number of matters were put to her, in accordance with the applicant’s instructions, and in compliance with the rule in Browne v Dunn.[12] Some of those matters might be taken to have weakened her credibility. On our reading, however, NP withstood cross-examination well, and certainly did not resile from any of her allegations. Moreover, although there were several inconsistences in her account, these were to be expected, and none of them were of any great substance.[13]
[12](1893) 6 R 67.
[13]The judge’s charge dealt with the question of prior inconsistent statements and a submission that NP had given conflicting accounts as to where the applicant had put his penis in her mouth.
Fundamentally, this was classically a case of oath against oath. Each and every facet of NP’s evidence was analysed, and the jury were addressed, at length, as to why she should not be accepted as a credible and reliable witness.
The judge’s charge was, if we may say so, impeccable. There is, of course, an issue relating to the direction given as to ‘forensic disadvantage’, to which we shall shortly return. However, at least as regards grounds one and two, it is relevant to note that the directions given were balanced, clear and helpful.
We could go through, in elaborate detail, each and every one of the points made on behalf of the applicant in support of ground one. It is sufficient for present purposes simply to say that we consider the Crown’s responses to those points to be compelling. More particularly, nothing whatever can be drawn from the fact that, in 1990, the police chose not to charge the applicant with any offending arising out of the caravan incident. It is by no means clear what NP told her mother about what took place there that night, still less what she told the Wodonga police at the time.
In addition, as the Crown submitted, the state of the law regarding sexual offending against children was somewhat different in 1990 than it is today. It would not have been particularly unusual at that time for the police to decline to charge someone with offences of that kind in the absence of any supporting evidence, or corroboration. It is nothing more than sheer conjecture to infer from the failure to bring charges in 1990 that the police formed the view that NP would not be a credible or reliable witness. Even if such an inference could be drawn, it is difficult to see how it could possibly be said to render the convictions in this case unsafe or unsatisfactory.
The various criticisms levelled by the applicant at NP’s conduct, both at the time of the alleged offending and thereafter, must be considered in light of the fact that she was a young child when these alleged incidents took place. She would undoubtedly have been frightened, and reluctant to come forward.
Thereafter, there is nothing about her conduct as an adult that should give any great cause for concern as to whether the jury, acting properly, could accept her as a witness of truth.
In short, we are not persuaded that the evidence taken as a whole meant that the jury ‘must’ have rejected NP as a credible witness, and ‘must’ therefore have acquitted. Having considered the whole of the evidence for ourselves, we do not entertain a reasonable doubt as to the applicant’s guilt. Proposed ground one does not enjoy sufficient prospects to warrant the grant of leave to appeal.
The applicant’s contentions re ground two – inconsistent verdicts
In his written case, the applicant first noted, in support of this ground, that NP’s evidence was that he had raped her on two separate occasions, a week apart, in Broadmeadows. The Crown had accepted that its case turned entirely on NP’s credibility. If the jury did not accept her evidence on the rape charge, they should also have rejected her evidence on all other charges.
The Crown’s contentions re ground two – inconsistent verdicts
The Crown submitted that it was trite law that a jury would be entitled to accept some parts of a complainant’s evidence, and not others. Of course, in this case the jury were given the standard ‘separate consideration’ direction by the judge. Merely because, for whatever reason, they were not satisfied beyond reasonable doubt as regards every element of charge 3, did not mean that they must have concluded that NP was not a credible witness, whose testimony they were obliged to reject.[14]
[14]See generally R v Ware [1996] 1 VR 647, 649–650. Self-evidently, a jury’s verdict of acquittal on a particular charge does not amount to any positive finding by the jury that the events of which the complainant gave evidence did not occur.
In its written case, the Crown put forward several hypotheses by way of explanation for the convictions on charges 1 and 2, and the acquittal on charge 3. It must be said that some of these hypotheses seem to us to be somewhat improbable. They included the ‘unusual’ nature of the charge of rape, said to contrast starkly with the allegations of incest brought under charges 7, 8 and 9. The Crown argued that the juxtaposition of these charges may itself have resulted in confusion, leading the jury somehow to decide to give the applicant the benefit of the doubt on charge 3. As will be seen, we reject that submission.
The Crown also referred to the charge of rape having necessitated a direction not merely as to the element of absence of consent (which did not apply to the charges of incest) but also having required the extraordinarily complex direction as to the mens rea of rape that was delivered. The Crown posited that the jury may not have been satisfied to the requisite degree that the applicant was sufficiently aware of the possibility that NP might not be consenting, and acquitted him of rape for that reason. Once again, that particular hypothesis seems unlikely, given the particular facts of this case.
Analysis of proposed ground two – inconsistent verdicts
The principles that govern inconsistency of verdicts as a ground of appeal are clear.
In MacKenzie v The Queen,[15] Gaudron, Gummow and Kirby JJ said in a joint judgment:
[15](1996) 190 CLR 346 (‘MacKenzie’).
1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court’s record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge’s directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.
2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately…
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.’
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries… In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin) observed:
‘[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.’
…
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case.’
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case. [16]
[16]Ibid 366–8 (citations omitted).
In Avery v The Queen,[17] Weinberg JA referred to the High Court’s subsequent decision in MFA v The Queen,[18] where the principles laid down in MacKenzie were affirmed.
[17][2014] VSCA 86.
[18](2002) 213 CLR 606 (’MFA’).
The appellant in MFA had been found guilty of two counts of sexual abuse against a youth, but was acquitted of a further seven counts. The sexual acts to which the nine counts related were alleged to have occurred on four separate occasions. The counts upon which the appellant was convicted related to one particular occasion. The appellant argued that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence, and could not be reconciled with the verdicts of not guilty on the other counts. It was submitted that the acquittals must have involved the non-acceptance by the jury of the complainant’s evidence. That in turn must have impacted upon the complainant’s evidence with respect to the guilty counts.
In dismissing the appeal in MFA, Gleeson CJ, Hayne and Callinan JJ rejected the notion that an earlier decision of the Court in Jones v The Queen,[19] had endorsed such an approach. Their Honours said that Jones had not stood for the proposition that:
where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.[20]
[19](1997) 191 CLR 439.
[20]MFA (2002) 213 CLR 606, 618.
Their Honours specifically characterised that view as ‘erroneous’, adding that it:
overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned … [earlier in MFA]. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.[21]
[21]Ibid (citation omitted).
In their joint judgment in MFA, McHugh, Gummow and Kirby JJ also rejected that particular view of Jones. Their Honours added that ‘[i]t always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified’.
As noted in Avery, the principles laid down in both MacKenzie and MFA have been applied by this Court on many occasions. The authorities all make it plain that an applicant who relies upon inconsistency of verdicts, in a factual sense, as a ground of appeal carries a heavy onus. What must be shown, according to MacKenzie is no less than ‘an affront to logic and common sense’ which is unacceptable, and strongly suggests a compromise of the performance of the jury’s duty. If there is any possible explanation for the different verdicts arrived at which is reasonably plausible, the ground will fail.
The particular act of sexual intercourse that gave rise to charge 3, the charge of rape, was said to have taken place at about the same time as the two acts of indecent assault that formed the basis of charges 1 and 2. Of course, neither the first nor second of those charges involved allegations of penile penetration. By reason of the state of the law at the time these acts took place, they were charged as indecent assaults, and not as they now would be, rape.
Charge 3, of which the applicant was acquitted, was a charge of rape. The charge, as drafted, specifically alleged that the applicant had introduced his penis into NP’s vagina.
As previously indicated, charge 4 was a charge of indecent assault by digital penetration (the Bedford van incident). Charges 5, 6, 7, 8 and 9 all concerned sexual acts of various kinds said to have been committed in the applicant’s caravan. These included penile penetration (charged as incest).
The question is what sensible conclusions can be drawn from the jury’s acquittal on the charge of rape given, in particular, the guilty verdicts on charges 1 and 2?
Of course, as the Crown submitted, there are various possible explanations for these verdicts. Although NP said that penile intercourse took place on that first occasion at the Broadmeadows house she acknowledged, under cross-examination, that she did not see a doctor after that particular incident. She was also asked in cross-examination whether, as a result of having supposedly been raped, she had suffered any bleeding. She said she could not remember.
It is important to note, so far as this proposed ground of appeal is concerned, that in his closing address, counsel who appeared for the applicant at trial invited the jury to reject NP as a witness of truth. He did so, in part at least, because of the evidence that she gave regarding the alleged rape itself. He had this to say:
You’ll remember that in my learned friend’s opening address he said something about the prosecution having to prove this case beyond reasonable doubt. Didn’t hear anything about that in his closing address but that is the most important phrase for you to keep in your mind when you are considering the evidence in this case. And what is the evidence? The evidence that goes to these allegations comes solely from the mouth of [NP]. And what does it consist of? Well in relation to the first alleged set of charges in Broadmeadows, according to her comes out of the blue there’s no lead up he drags her into the bedroom, fondles her vagina, licks her vagina, has full sexual intercourse when she’s at a shockingly young age on the master bedroom bed on the sheets — no evidence of any pain, no evidence of any bleeding. Is that credible? That account is that credible [sic] especially when how does it come out in evidence-in-chief while my learned friend is leading evidence from her. Question: ‘What did he do next after licking your vagina?’ Answer: ‘He told me to put my clothes back on and go outside and don’t mention it to anybody’. So initially nothing about sexual intercourse at all and then my learned friend asked, ‘Did you see his penis at all?’ ‘I have but not in that incident’. ‘I mean in this incident did you feel his penis at all?’ — clearly trying to lead her to say something about that you might think. ‘What was he doing with his penis?’ ‘Oh on your leg just rubbing it back and forth on my leg’. And then finally we get to oh he actually inserted his penis into my vagina. You might think the most important aspect of her first allegations has to be, you might think squeezed out of her. And what does my learned friend say in his address that, ‘It is not easy to remember the small details but you can remember the shocking details’.[22]
[22]Our emphasis.
Trial counsel, in these submissions, was plainly inviting the jury to consider NP’s evidence regarding the alleged rape as itself inherently improbable. He was doing so on the basis of criticisms that were unique to this particular allegation, separate from whatever criticisms could be levelled at her evidence with regard to the other alleged offences. If trial counsel’s argument regarding charge 3 had found favour with the jury, they might well have thought that NP’s evidence regarding the rape was dubious, without otherwise rejecting her account.
According to NP, the act of penile intercourse took place in her mother’s bed, and without the use of a condom. Moreover, she could not recall whether the applicant had ejaculated, and was extremely vague about other details of the alleged rape. Her inability to answer questions regarding the details of the rape, might have given the jury pause for thought, at least as regards charge 3.
The jury might also have been troubled, and perhaps confused, by NP’s evidence that the applicant raped her a second time a week or so after the first incident in Broadmeadows. For reasons that they may not have understood, that second act of rape, as described by NP, had not been the subject of any charge in the indictment.
The true answer to proposed ground two seems to us to lie in trial counsel’s closing address and, in particular, the passage from that address which we have set out above. As previously stated, once there is a plausible explanation for what might otherwise seem to be a factual inconsistency, this ground ceases to have any cogency. Accordingly, we would refuse leave on proposed ground two.
The applicant’s submissions regarding ground three – forensic disadvantage
The applicant, in his written case, noted that the trial judge had instructed the jury that he had suffered a significant disadvantage by reason of the following matters:
(a) The Applicant had no opportunity to test the Applicant’s versions of events to the Police and to [the doctor] in 1990;
(b) The delay in charging the Applicant meant that the Applicant was unable to obtain evidence about the Bedford Van being involved in an accident thus being off the road and unable to convey the complainant to [her mother’s place of work];
(c) The Applicant was unable by reason of the delay to raise possible alibis because he no longer had his log books from 1988–90 available to him;
(d) The Applicant was no longer able to call evidence regarding the leases of properties in Melbourne to disprove the complainant’s version of events;
(e) The Applicant was unable to call evidence from … his neighbour at the Wangaratta caravan park, who was involved with the complainant on the night she came to stay with the Applicant;
(f) The Applicant was reduced to having to make bare denials about the allegations with the exception of being able to call his mother about the complainant explaining that her mother forced her to make the complaint in March 1990.
The applicant submitted that, notwithstanding the judge having drawn the jury’s attention to these matters, the list had been incomplete.
He submitted that he had also suffered a significant forensic disadvantage, by reason of delay, in that no police officer was now available to explain why charges had not been laid in 1990. Moreover, there was no medical evidence available regarding NP’s physical condition at the time of the alleged offending. In addition, the fact that the 1990 complaint to the Wodonga Police had been made via a neighbour, who was now no longer available to give evidence, meant that the circumstances surrounding the making of that complaint could no longer be explored. Finally, it was said that the sheer effluxion of time meant that the applicant could not adequately rebut the suggestion that he had had a sexual interest in NP. That suggestion came from NP alone. Had there not been the lengthy delay that there was, it might have been possible to call evidence in rebuttal.
The Crown’s submissions regarding proposed ground three – forensic disadvantage
The Crown submitted that the trial judge had given a conventional ‘forensic disadvantage’ direction, which was entirely adequate. That direction was in the following terms:
As I have just said the offences in this trial are alleged to have occurred on various occasions between 1 April 1988 and 14 March 1990. [NP] first complained to her mother about the alleged offending and it would appear that as a result of a neighbour, if you accept that evidence going to the police or contacting the police after the complainant’s mother spoke to her, it appears that she then went to the police on 15 March 1990.
However, it appears that some statements were taken at that time and there was obviously a medical examination conducted at that time and the matter did not proceed until [NP] renewed her complaint in 2013. I must now inform you of a significant consequence of the delay in this matter being pursued. This is the impact this delay has had on [the applicant's] ability to defend himself against these charges. In assessing the evidence in this case, you must have regard to the following significant considerations: Because of this delay [the applicant] has lost the means of testing [NP’s] allegations by having regard to her 1990 police statement and that of [KP], as well as having regard to the statement of [the applicant’s neighbour at the caravan park] and any report or notes from [the doctor] who examined the complainant at that time.
Further, he has lost the opportunity to inspect any police notes made at that time including any notes of the allegations that the police put to him or what [the applicant] told them at that time. All of these documents would have been available had there been no delay in prosecution. Also [the applicant] has lost the opportunity through documents such as the panel beater's report perhaps, documents from his former employer … to perhaps challenge evidence in respect of the Bedford van and when it was available for use and when it was off the road. He has lost the opportunity to obtain log books from his previous employer … or other documents to perhaps challenge [NP’s] evidence, that on a particular occasion she travelled with him to collect her mother at the … service station. So effectively to be a position to perhaps raise an alibi in relation to that occasion of alleged offending. He no longer has a chance to gather documentation such as lease or rental documents which might challenge the evidence of [NP] and [KP] as to when they were living at particular houses. And of course the Bedford van is no longer around. He has also lost the chance to have [the applicant’s neighbour at the caravan park] give evidence as to any observations he might have made in respect of the complainant on the occasion that she stayed at the caravan. He has also lost the chance to perhaps adduce evidence from [the doctor] or the investigating police officers who were involved in the case in 1990. He has been left largely in a position to give evidence of bare denials in respect of the allegations although his mother has given evidence in this matter but largely he has been left in a position to give bare denials.
I instruct you as a direction of law that you must take these disadvantages into consideration when determining whether the prosecution has proved [the applicant’s] guilt beyond reasonable doubt.
The Crown submitted that it was important to note that trial counsel took no exception to her Honour’s charge regarding the issue of forensic disadvantage. It should be noted, however, that the applicant submitted before this Court that this was of no consequence because trial counsel had, at an earlier stage in the trial, requested a direction that was more comprehensive than the one that was ultimately given. Such a direction would have embraced the various matters that are now said by their absence, to have rendered the charge irredeemably inadequate.
As regards the specific matters that were said to have been omitted from the charge, the Crown submitted:
As to para [31] of the Applicant’s Written Case, the point would not have been lost on the jury (namely that a complaint had been made in 1990 and no charges were laid by police). However, the Applicant has not suffered a miscarriage of justice by the failure to call investigating police to provide an explanation – any explanation may not have assisted the Applicant as it is notorious that historical sexual offences were often not prosecuted due to a lack of corroborative evidence (as was the case here).
As to para [32] of the Applicant’s Written Case, it must be noted that this specific topic formed part of the direction administered to the jury. Further, it must be noted that many prosecution cases proceed without supporting medical evidence – such evidence is often entirely neutral.
As to para [33] of the Applicant’s Written Case, it must be noted that this specific topic formed part of the direction administered to the jury. As a complaint was indeed made to investigating police in 1990 (and accepted by the defence as so), it is difficult to understand how the absence of the neighbour added anything given that the statements/notes of the police investigation were also missing.
As to para [34] of the Applicant’s Written Case, this point is misconceived under cover of this ground – either the evidence is admissible as tendency evidence (evidence of sexual interest in complainant) or it is not. In short, the historical nature of the allegations does not deprive the evidence of its probative value. The evidence relied on by the prosecution was confined to 3 main occasions which incorporated either a specific charge or involved lead-up conduct — see Charge, at 311-312. In any event, the point sought to be agitated was specifically addressed by the judge in her directions to the jury — see Charge, at 312.
If, as is now contended, the forensic disadvantages were such as to deprive the Applicant of a fair trial, an application should have been made to the trial judge to stay the trial on that basis – and, if rejected, a ground of appeal drawn accordingly. The staying of any criminal trial is a monumental step and should only occur in the most exceptional case — here there were other remedies available to alleviate any unfairness suffered by the Applicant.
In short, no substantial miscarriage of justice has been occasioned – a detailed direction was administered which identified each of the respective deficiencies caused by the delay. Furthermore, the closing address by defence counsel clearly exposed the deficiencies for proper consideration by the jury.
Analysis re proposed ground three – forensic disadvantage
The judge’s direction regarding forensic disadvantage was, in our opinion, perfectly satisfactory. As the Crown correctly submitted, a number of the matters that are now said to have rendered the direction on forensic disadvantage insufficient were, in fact, adequately covered. Others were of dubious merit, at best.[23]
[23]We refer in that regard to the suggestion that the judge should have directed the jury that the failure of the police to charge the applicant in 1990 had some particular significance so far as the complainant’s credibility at trial was concerned.
Leave to appeal on proposed ground three should be refused.
Conclusion
For the reasons set out above, none of the proposed grounds of appeal has sufficient prospects of success to warrant the grant of leave.
Accordingly, such leave is refused.
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